Monday, April 8, 2013
C.A. Rejects Writer’s Claim He Originated Hit Show LOST
By a MetNews Staff Writer
A writer/producer’s claim that he is owed royalties for having submitted the idea for the television series LOST, more than a quarter-century before it went on the air, is without legal foundation, the Court of Appeal for this district has ruled.
Div. Eight, on March 8, affirmed a summary judgment in favor of ABC. Justice Madeleine Flier’s opinion was certified Friday for publication.
Flier said there was uncontradicted evidence that the creators of the show—Lloyd Braun, Damon Lindelof, J.J. Abrams, and Jeffrey Lieber—were completely unaware of Anthony Spinner’s 1977 effort to bring a show called Lost, with plot elements similar to those of LOST, to the small screen. Nor were they aware of a 1990s effort to produce a show based loosely on the earlier script, the justice said.
Spinner, who worked on a number of television series in the 1960s, 70s, and 80s, claims that LOST, which ran on the network from 2004 to 2010, was based on his script about a group of Olympic athletes whose plane crashes in the Himalayas. Seeking shelter from the snow and the wind, they go through a mountainside tunnel and discover a prehistoric world filled with dinosaurs and flying reptiles.
As they enter the new world, an avalanche seals the tunnel they came from, cutting off their access to the world they left behind, and forcing them to seek ways to survive in their new environs.
After ABC passed on the project, Spinner acknowledged, he did nothing with it until 1991, when he tried to convince the network to produce a show with a similar crash-survival theme, but taking place in outer space. But the network executives to whom he made the pitch were gone from the network by the late 1990s and had nothing to do with LOST.
Flier agreed with Los Angeles Superior Court Judge Kevin Brazile, who granted the summary judgment motion, that Spinner failed to establish a triable issue of fact because—assuming he could show a substantial similarity between his idea and the show—he could not show that the creators of LOST had access to his earlier work, nor could he refute their evidence of independent creation.
Spinner’s claim that ABC executives involved in creating LOST must have seen his script because the company had a policy of permanently retaining unreturned scripts was “guess work,” the justice said, citing evidence that a search of the network script library failed to produce the 1977 script or anything related to it, although his eight-page “Outer Space Treatment” was found.
“[A] bare possibility of theoretical access premised on mere speculation” is insufficient to satisfy the requirement of a nexus between the plaintiff’s idea and the defendant’s product, Flier said.
Flier went on to say that the creators’ uncontradicted testimony that they never had any contact with Spinner or with anyone to whom he dealt in connection with either the 1977 script or the Outer Space Treatment was sufficient to establish independent creation as a matter of law.
Spinner’s argument that Lost and LOST were so similar as to create an inference that the latter was not created independently was “circular and unpersuasive,” the justice wrote, because any such inference had been dispelled by the network’s proof, including Spinner’s admission that he never contacted anyone involved with the production or creation of LOST and never provided them with any materials.
Attorneys on appeal were Steven G. Sklaver and Oleg Elkhunovich of Susman Godfrey for the plaintiff and Andrew M. White, David E. Fink, Allison S. Brehm and Joshua M. Keesan of Kelley Drye & Warren for the defendant.
The case is Spinner v. American Broadcasting Companies, Inc., B239229.
Copyright 2013, Metropolitan News Company